Report No. 15
This is new. A proceeding for judicial separation, it has been suggested in some quarters, is a waste of time, because a decree of separation neither ends the marriage nor encourages the parties to come together. On the other hand there are certain persons and bodies, who hold the opinion that the sanctity of marriage should be preserved at all costs, and that where the parties cannot stay together, they may be allowed to remain separate by a decree of judicial separation without breaking the marriage by divorce.
As a compromise between the two shades of opinion, the clause under discussion attempts to provide a procedure which, while mitigating the objection based on waste of time, will ensure that the marriage is not broken up in haste1. The difference between the clause under discussion and the provisions in section 13(1)(viii) of the Hindu Marriage Act and section 27 (i) of the Special Marriage Act is two-fold:-
(i) Under the clause under discussion, it will not be necessary for the parties to file a fresh petition for divorce. Under the other two Acts, a fresh petition is necessary.
(ii) Under the clause under discussion, either party (that is, whether he is the petitioner or the respondent in the decree for judicial separation) can apply for divorce, while under the other two acts only the petitioner who obtained the decree can so apply. It is felt that where A obtains a decree for judicial separation against B, the initiation of further proceeding for divorce should be open to B also. The reason is, that in the absence of such a provision, B is always kept at the mercy of A and A can, after having obtained the decree for judicial separation, sit quiet and neither end nor mend the marriage2.
[It may be of interest here to note that in South Australia, a decree of judicial separation passed by any court in the British Commonwealth, is a ground for divorce3.]
It has been considered unnecessary to have an express provision as to whether divorce can be obtained on the very ground that led to the earlier decree for separation4.
It is also considered unnecessary to lay down any elaborate procedure as to the passing of the first decree (separation) and the second decree (divorce), and the interrelation between the two.
1. See also the body of the Report, para. 44.
2. Cf. the Hindu Marriage (Amendment) Bill 1958, Bill No. V of 1958, as introduced by Dr. W.S. Barlingay in the Rajya Sabha.
3. See the U.N. Survey of Legislation on marriage, divorce etc. Publication No. ST/SOA/ 29, dated 9th March, 1956, U.N. Bureau of Social Affairs, Population Branch.
4. Contrast section 7 (English) Matrimonial Causes Act.